UNACCOMPANIED MINORS CRITICAL CONDITIONS AT ITALIAN EXTERNAL AND INTERNAL BORDERS - Asgi
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UNACCOMPANIED MINORS CRITICAL CONDITIONS AT ITALIAN EXTERNAL AND INTERNAL BORDERS ASGI’S MONITORING REMARKS ON THE CURRENT SITUATION FOR UNACCOMPANIED MINORS AT ITALIAN BORDER AREAS AND THE IMPACT OF PROPOSALS RELATED TO THE EU PACT ON ASYLUM AND MIGRATION POLICY PAPER JUNE 2021
UNACCOMPANIED
MINORS
CRITICAL CONDITIONS
AT ITALIAN EXTERNAL
AND INTERNAL
BORDERS
CONTENTS
1_Introduction 3
2_National Legal Framework 4
3_Unaccompanied Minors at Italian Border Areas 6
3_1 Unaccompanied Minors at External Maritime Borders 6
3_2 Unaccompanied Minors at the Maritime Internal Border with Greece 9
3_3 Unaccompanied Minors at the Internal Land Border with Slovenia 11
3_4 Unaccompanied Minors at the Internal Land Border with France 13
4_EU Pact on Asylum and Migration and related reforms,
and their impact on unaccompanied minors 15
4_1 Proposal for a Pre-screening Regulation 15
4_2 Proposal for a Regulation on Asylum and Migration Management 17
4_3 Proposal for an Asylum Procedures Regulation 18
4_4 Proposed Regulation to Address Situations of Crisis and Force Majeure
in the Migration and Asylum Field 20
4_5 Conclusions 21
5_Recommendations 22
5_1 On Unaccompanied Minors at Border Areas 22
5_2 On EU Pact on Asylum and Migration and related reforms 23
_UNACCOMPANIED 3 MINORS CRITICAL CONDITIONS AT ITALIAN EXTERNAL AND INTERNAL BORDERS CONTENTS 1_Introduction The Italian legal framework regarding the protection and reception of unaccompanied foreign minors is particularly advanced and in line with the principle of the best interests of the minor, a cardinal principle that must guide all procedures involving minors. However, the situation encountered by foreign minors at Italy’s internal and external borders is characterized by several illegitimate practices and consequent violations of their rights. Serious concerns for the respect of the fundamental rights of foreign minors also arises from the new proposals attached to the European Pact on Migration and Asylum, presented by the European Commission on 23 September 2020. Negotiations on the Pact are currently underway, but it is already evident, as widely denounced by various realities, that it would imply a risk for the European asylum system of taking a further step backwards. The approval of the reform proposals associated with the Pact would in fact risk consolidating practices contrary to the best interests of these minors (such as detention and refoulement), as already experienced at the borders of several Member States, including Italy. Inasmuch, this document has a two-fold purpose: on the one hand, it seeks to draw attention to the illegitimate practices implemented at the external and internal borders and, on the other, it provides a critical interpretation of the possible reforms that would follow the adoption of the proposals in this Pact. It achieves this, especially in light of what is already happening in Italy, with specific reference to the situation of unaccompanied foreign minors. In conclusion, specific recommendations will be submitted to Italian and European authorities with the intention of contrasting the illegitimate practices we have encountered. In addition, further recommendations will address the new Pact, indicating the changes that should be made to the proposals, so that they respect the rights of minors and the principle of their best interests.
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2_National Legal Framework
In 2017, Italy adopted its first comprehensive legislation concerning unaccompanied minors
(Law 47/2017, the so called “Zampa Law”). This law introduced important innovations and several
assurances concerning the protection and reception of unaccompanied foreign children1,
following arrivals at Italian coasts in high numbers since 2016. After their disembarkation,
the children often disappeared because of the lack of safeguards and appropriate accommodation
and protection.
The 2017 law establishes that all unaccompanied minors are entitled to the same rights and
child protection safeguards as those enshrined in the New York Convention on the rights of the
child (CAT)2, on equal grounds to Italian and European minors. It follows that in all decisions
and procedures concerning such minors, the best interests of the child must be a primary
consideration. In compliance with such “best interests” principle, the law envisages that,
if doubts over the age of the person exist, a presumption of minority prevails and the person
shall be treated as minor. In order to assess the best interests of minors, they shall be heard
in all proceedings regarding their status, and their age and degree of maturity are to be taken
into account3. Moreover, the best interests of minors have to be considered when deciding upon
reception measures in order to ensure appropriate living conditions based on age.
Article 3 of Law 47/2017 sets a general and unconditional prohibition of refoulement
of unaccompanied foreign minors at borders. The prohibition operates regardless
of the reasons for the minor’s entry into Italy, and the fact that he or she is an asylum seeker.
Moreover, unaccompanied migrants cannot be returned to their country of origin, unless
it appears that the reunification with his/her family is in the best interest of the child and that
in the country of origin he/she would live in better conditions. In such a case, the Juvenile Court
can order specific family investigations in the country of origin and the situation of the person
in Italy has to be reviewed through detailed reports by social services. The judge can thereby
reach a decision for the assisted voluntary return of the child. During the procedure, both the
unaccompanied minor and his/her guardian have the right to appear in front of the judge.
Given that rejection and expulsion of unaccompanied foreign minors is forbidden, it also follows that
their detention is unlawful: Article 19 (4) of Legislative Decree n. 142/2015 provides for a general
prohibition of detention of all unaccompanied minors, whether they are asylum seekers or not.
Moreover, under the Italian legal framework, all unaccompanied children shall be accommodated
in reception facilities for minors and are entitled to a permit to stay “for minors” until they are
18 years old4, unless they applied for international protection. Moreover, Law 47/2017 grants swift
access to asylum procedures for unaccompanied minors who were prevented from lodging their
asylum application because of delays in appointing a guardian5.
1 In accordance with Article 2, Law 47/2017, an “unaccompanied foreign minor” (UM) is defined as a foreign minor who
is found in Italian territory or is subject to Italian jurisdiction, who lacks the material assistance and representation
of his/her parents or other adults who would be responsible for him/her in the context of Italian legislation.
2 UN Convention on the Rights of the Child, 1989.
3 Article 18 (2) Legislative Decree 142/2015.
4 Law 47/2017 also introduced a humanitarian provision that extends the protection measures for unaccompanied
minors who, reaching the age of 18, are not already accommodated within a protection system. The extension
is decided by the Juvenile Court, in situations where the person is about to turn 18 and is on his/her way to reach
autonomy and a certain degree of integration in the country, but he/she still needs support.
5 Article 18 Law 47/2017, Article 26 (5) Italian Legislative Decree 25/2008.UNACCOMPANIED 5
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The premise for children to have access to protection, reception and integration measures
in accordance with Law 47/2017 is their identification as unaccompanied minors.
Article 5 of the Zampa Law prescribes that public security authorities, assisted by cultural
mediators, should ascertain the minor’s identity and age primarily by means of personal
documents, such as passport, identity card, birth certificate or any other document with a picture
of the person, unless there are doubts concerning their authenticity.
If identification documents are not available and there are well-founded doubts about the age
declared by the migrant, an age assessment procedure may be ordered by the judicial authority.
The child must be informed about the methods and consequences of the procedure, which has to
be carried out with a multi-disciplinary approach (combining social and medical examinations),
by professionals with appropriate expertise6.
Throughout the entire procedure, the person has the right to be heard and has to be treated as
a minor7. From the mandatory presumption of status as a minor, it follows that, even if the decision
by Juvenile Court has not yet been taken, migrants can never be detained and shall be placed in
specific reception facilities for minors.
As for the reception system, Law 47/2017 defined a structured national reception system,
with minimum standards in all reception facilities, which is currently organised in two stages.
During the first stage, children are accommodated in first reception facilities for minors
(so-called “FAMI” centres), for first aid and immediate assistance purposes. The centres are run by
Ministry of Interior territorial representatives (Prefectures) and host minors for a maximum period
of 30 days. During this stage, children are identified and informed about their rights, including
the right to apply for international protection8. The second stage of UM reception takes place in
“SAI” centres (Accommodation and Integration System): they are run by Local Councils and have
to comply with the assistance standards of the general Italian system of residential care facilities
for children. In addition to the basic services provided for in FAMI centres (cultural mediation,
legal, medical and psychological assistance), SAI projects must include school courses, vocational
training, professional orientation and job placements services, in order to grant social inclusion
and autonomy of minors.
To sum up, all the procedures and guarantees provided for by L. 47/2017 are inspired by the best
interest of the child principle, from which it follows that: minors shall never be pushed back;
they cannot be detained and shall be accommodated in reception facilities for minors; they have
a right to be heard and treated like a child in all the administrative procedures concerning their
status; unaccompanied minor are to be assisted by a guardian, that shall be promptly appointed.
6 In order to ensure uniform application throughout the country of socio-healthcare age assessment methods and
the criteria for identifying the specialized figures who must be involved, a Protocol for determining the age of MSNAs
was adopted on 9 July 2020 by the Unified State-Regions Conference.
7 One of the consequences is that the migrant is placed in reception centres for children.
8 As a measure of last resort, since 2016 Prefectures may decide to accommodate migrant children (older than 14)
in special reception facilities for unaccompanied minors (“CAS minori”) while waiting for the availability of places
in ordinary centres. Remarkably, there is no time limit for reception in CAS and the centres can host up to 50 minors,
in clear contrast with the standards of reception care facilities for minors.UNACCOMPANIED 6
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3_Unaccompanied Minors at Italian Border Areas
3_1 Unaccompanied Minors at External Maritime Borders
As a general rule, unaccompanied minors who reach Italy by sea - by independent landings and
following to SAR operations - after disembarkation are moved to the local hotspot. After being
tested to Covid-19, they undergo identification procedures (registration, fingerprint release, etc.)
with police authorities and are required to sign a document called “foglio notizie” (information sheet).
According to Hotspot Standard Operating Procedures (SOPs)9, the identification of all foreign
citizens should be preceded by the legal information provision concerning asylum,
which in the case of unaccompanied minors should be carried out in a child-friendly manner
by International Organizations10.
SAR operations, disembarkation procedures, identification procedures at the hotspot, as well
as detention on board quarantine ships and detention centres on land, are all possible avenues
for the disclosure of unaccompanied minors as such, and their identification.
However, the lack of a targeted and child-friendly information provision by International
Organizations - as regards both the rights of unaccompanied minors and right to asylum - may
hinder both the disclosure and the identification of unaccompanied minors. If not promptly
identified as such, unaccompanied minors can be automatically channelled through asylum
or return procedures, as is the case for adults. As highlighted by several NGOs (including ASGI),
the implementation of the so-called Hotspot Approach envisages the classification of migrants
between those who are entitled to seek international protection and those who are not.
This may happen - in contrast with the individual nature of the right to asylum - through
an informal application of the nationality-based assessment grounded on the “safe country
of origin” criterion11. Although, in accordance with the existing legal framework, identification
of unaccompanied minors should take place at the hotspot, in practice this may occur in each
of the several spaces crossed by foreign citizens after rescue, hotspots, quarantine ships,
as well as reception and detention facilities. In very rare cases, and depending on the availability
of dedicated staff on-board, the first identification of unaccompanied minors man even take place
onboard SAR vessels performing rescues.
As part of the hotspot approach, the identification of possible unaccompanied minors should take
place during the pre-identification, screening and photo-identification stage.
However, the preconditions for the individual will to seek international protection or other
elements which may prevent expulsions, such as status as a minor or other specific needs that
may emerge, are the provision of clear information, its full understanding and the existence of
dedicated times and spaces for the disclosure of traumatic experiences. The absence of these
preconditions, which may be exacerbated by the limited presence of child protection organizations
at the hotspot, may lead to simplified and nationality-based categorization processes.
In the information provided by the Police Headquarters of Agrigento in relation to the Freedom of
Information Act (FOIA) submitted by ASGI and concerning the presence of unaccompanied minors
9 The document adopted by the Ministry of Interior in 2016 can be accessed at: http://www.libertaciviliimmigrazione.
dlci.interno.gov.it/sites/default/files/allegati/hotspots_sops_-_english_version.pdf.
10 In particular we refer to International Organizations as UNHCR, IOM, Save the Children.
11 ASGI (2020), Hotspots, Italy, ECRE, AIDA, https://asylumineurope.org/reports/country/italy/asylum-procedure/
access-procedure-and-registration/hotspots/.UNACCOMPANIED 7
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on quarantine ships, reference is made to the “transit” of minors through the Lampedusa hotspot12.
However, the police authority does not specify whether identification and age assessment
procedures did take place there. In addition, any information provided concerned the temporary
borders of this transit, as well as methods and criteria adopted for initial identification
of unaccompanied minors.
Starting from April 2020, and according to an administrative act issued by the Director of the
Civil Protection Service (protocol n. 1287 dated 12 April 2020) - which followed the joint ministerial
decree of 7 April concerning the partial classification of Italian harbours as unsafe13 - the Italian
Government began systematically using private ships to quarantine foreign citizens arriving
in Italy following SAR operations as well as independent disembarkation on Italian shores.
The measure to transfer unaccompanied minors to quarantine ships - which took place at least
from April to October 2020 - raised several critical issues.
According to information provided by Palermo Juvenile Court, in relation to the Freedom
of Information Act (FOIA) request submitted by ASGI concerning the presence of unaccompanied
minors on quarantine ships14, the identification and age-assessment procedures
of unaccompanied minors were not carried out on-board the ships and until 8 October 2020
unaccompanied minors were not reported to the judicial authority “except at the end
of the quarantine and in the context of subsequent transfer to community facilities”, disregarding
the rule as per Article 19, item 5 of Italian Legislative Decree 142/2015.
On 21 October 202015, the Ministry of the Interior ordered the suspension of transfers of
unaccompanied minors to quarantine ships. Despite this, the above-mentioned shortcomings
regarding identification and age-assessment procedures at the hotspot, coupled with the limited
consideration of possible unaccompanied minors’ self-declarations as such when they are
on-board, saw such transfers still take place, being possibly followed by unlawful removal
procedures and simultaneous detention in detention centres16.
Further critical issues have been observed concerning the unlawful detention of unaccompanied
minors in hotspots, quarantine ships and detention facilities.
According to the Italian legal framework, hotspots are supposed to host migrants only
for identification purposes for limited periods of time and, under no circumstances, minors
detention in hotspots is justified, a practice that appears to be a full violation of Article 13
of the Italian Constitution and of the guarantees provided by Article 5 of the European Convention
on Human Rights (ECHR)17.
In addition to the systematic application of informal detention measures during identification
procedures, this may take also place in other circumstances - in particular at Lampedusa hotspot
- such as the following stages preceding transfer to other places for health surveillance,
reception or administrative detention purposes.
12 The transit of 605 unaccompanied minors was reported. See https://inlimine.asgi.it/wp-content/uploads/2020/12/
Risposta-Questura-di-Agrigento-MSNA.pdf
13 According to the 7 April joint ministerial decree, issued by the Italian Ministries of Interior, Health and Transport,
Italian harbours did not meet criteria to be identified as Safe Places for people who were rescued by non-Italian
flagged vessels outside Italian territorial waters and in the context of SAR events outside IMRCC coordination.
14 Reply from the Palermo Juvenile Court to ASGI request submitted based on FOIA, accessible at: https://inlimine.asgi.
it/wp-content/uploads/2020/12/Risposta-Tribunale-per-i-Minorenni-di-Palermo.pdf
15 Reply from the Palermo Juvenile Court to ASGI request submitted based on FOIA, accessible at: https://inlimine.asgi.
it/wp-content/uploads/2020/12/Risposta-Tribunale-per-i-Minorenni-di-Palermo.pdf
16 See https://inlimine.asgi.it/ancora-minori-stranieri-non-accompagnati-a-bordo-delle-navi-quarantena/
17 See https://inlimine.asgi.it/hotspot-italia-rimandata-a-settembre/UNACCOMPANIED 8
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Since 2016, more than 12,000 migrant children have been placed in hotspot facilities
in Lampedusa, Messina, Pozzallo, Trapani and Taranto. A total of 1,609 children were placed
in hotspots in 2019, including 1,228 unaccompanied and 381 accompanied children18.
As for 2020, until 15 April 2020, 606 minors were placed in hotspots, including 515
unaccompanied and 91 accompanied minors19. This seems to be in contrast with Italian
legislation which, as specified above, envisages that they must be accommodated
in “specific government first reception facilities”20.
In particular, during the first 7 months of the pandemic, unaccompanied minors were also
subject to fiduciary isolation or quarantine at hotspots. In the case of Lampedusa hotspot,
unaccompanied minors were kept in social isolation conditions, accommodated in situations
of promiscuity with adults, within often inadequate and overcrowded spaces and deprived
of their personal liberty. In these circumstances, access by unaccompanied minors to dedicated
and appropriate health and psychosocial support was significantly compromised.
Even if transfers of unaccompanied minors to quarantine ships were suspended by the Italian
Ministry of the Interior in October 2020, this measure raised several critical issues, including
the possible violation of the right to personal freedom. The circumstances in which foreign
nationals - including unaccompanied minors - were transferred and kept on quarantine ships
did match many of the essential features of the deprivation of personal liberty, falling within
the scope of Article 13 of the Constitution21.
Further shortcomings were observed concerning material reception conditions and access
to health care on-board the ships. Both migrants and IRC staff members22 reported situations
of promiscuity of minors with adults, insufficient availability of medical personnel and possible
lack of adequate space for accommodation. These critical issues may result in contacts between
people who tested positive and others who tested negative, with relevant consequences in terms of
protracted isolation for the latter. Limited provision of information concerning purposes, temporary
limits of the measure and subsequent procedural steps - including possible repatriation - was also
observed, in particular as regards cases of persons transferred from reception facilities on land.
Finally, the possible lack of identification of unaccompanied minors as such in which, quoting
18 National Ombudsman for detainees, Report to Parliament 2019, 26 March 2019, available in Italian at: https://bit.
ly/2GijVoY, p. 133. In December 2020, ASGI lawyers filed interim measures at ECHR for foreign citizens - amongst
which 3 UASC - who were held in the Lampedusa hotspot following the 23 November 2019 shipwreck. On 10
December, the ECHR asked Italy to provide additional information concerning reception conditions in the Lampedusa
hotspot. In particular, the ECHR asked for clarifications concerning the adequacy of the facility to host minors, the
individual situation of appellants in the facility, on possible protection measures adopted by relevant authorities
to ensure them prompt access to a safe and protected environment and concerning the possibility of transferring
them to adequate reception facilities, as envisaged by the domestic and international legal framework. ASGI, the EDU
Court asked Italy to provide clarifications about the Lampedusa hotspot, 12 December 2019, https://inlimine.asgi.it/
la-corte-edu-chiede-chiarimenti-allitalia-sullhotspot-di-lampedusa/.
19 National Ombudsman for detainees, Report to Parliament, March 2020, p. 205.
20 In 2017, ASGI lawyers filed an appeal to the ECHR against the Italian government for the illegal detention of 14 foreign
minors in the Taranto hotspot. The detention had lasted several days in inhuman and degrading conditions. The case
is still pending and the Court has requested clarifications from the Italian government regarding illegal practices.
ECtHR, Trawalli and Others v. Italy, Application No 47287/2017, notified on 11 January 2018, http://hudoc.echr.coe.int/
eng?i=001-180670. Regarding the Taranto hotspot see also https://inlimine.asgi.it/visita-allhotspot-di-taranto/.
21 For more details see https://inlimine.asgi.it/wp-content/uploads/2021/05/Report-Rights-on-the-skids.-The-
experiment-of-quarantine-ships-and-main-points-of-criticism-ASGI.pdf.
22 Information provided by two humanitarian workers of the Red Cross on board a quarantine ship to the media. See
Camilli, E. Navi quarantena, due operatori umanitari raccontano “quel sistema sbagliato che sospende il diritto”,
24 December 2020, available at https://www.redattoresociale.it/article/notiziario/navi_quarantena_due_
operatori_umanitari_raccontano_quel_sistema_sbagliato_che_sospende_il_diritto_.UNACCOMPANIED 9
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the Italian Ombudsman for detainees “the foreign citizen is basically precluded from having
correct personal data reported on the entry information sheet [foglio notizie]”23, may easily lead
to unlawful deprivation of liberty in detention facilities, and delayed disclosure/age assessment
(e.g., reference is made to Ponte Galeria, Bari, Trapani-Milo and Gradisca d’Isonzo detention
facilities). ASGI documented cases in which the detention of self-declared unaccompanied
minors was validated by a Justice of the Peace who ordered their detention to take place within
supposedly dedicated areas. Even if according to Law 47/2017, the only Authority that can order the
age assessment - only if founded doubts on the minor’s age do exist - is the Public Prosecutor’s
Office at the Juvenile Court, in those cases it was ordered by the Public Security Authority
without the involvement of the Juvenile Court, in full violation of the pertinent legal framework
which disposes the immediate end of detention in those cases, to be followed by the prompt
transfer of the assumed minor to a suitable centre.
Even when the age assessment is ordered by the competent judicial authority, in the meantime
and in violation of the law, the assumed minors remain in detention for a variable period of time,
being illegally deprived of their personal freedom.
3_2 Unaccompanied Minors at the Maritime Internal Border with Greece
Although the borders of Adriatic ports are usually not given much media attention, arrivals via
the Adriatic route have increased in the last few years due to the critical conditions in the Greek
system, as well as all countries on the Balkan route. The monitoring initiatives promoted by various
NGOs, including ASGI, have revealed a significant number of pushbacks carried out by Italian
authorities in Adriatic ports, both to the Greek ports of Patras and Igoumenitsa and to Albania
and Croatia. Some testimonies also report pushbacks to Montenegro.
Through Freedom of Information Act (FOIA) requests sent to public administrations,
the above-mentioned NGOs belonging to the Adriatic Ports network were informed about the
following readmissions or pushbacks carried out from 1 January 2020 to 15 April 2020 (a short
period of time): 311 refoulements at the Bari maritime border, 53 at the Brindisi maritime border,
17 at the Venice maritime border and 13 at the Ancona maritime border.
According to Ministry of the Interior data, published recently by Altreconomia magazine,
from 1 January to 15 November 2020 there were 892 pushbacks of foreign citizens from
Adriatic ports and 201 active readmissions24.
For readmissions to Greece, Italy takes as the legal basis of this practice - as for other internal
borders - the 1999 bilateral readmission agreement with Greece, which came into force in 2001.
In accordance with this agreement, Italian authorities can carry out forced returns to Greece of
undocumented individuals arriving at Italian Adriatic ports. There are several profiles of illegitimacy
in this agreement, which also affects asylum seekers and unaccompanied minors.
Observations and reports highlighted that most returns from Adriatic ports to Greece take place
under informal procedures: practice shows that migrating people are indiscriminately rejected
once intercepted on a ferry or on their arrival, without properly assessing their individual
situation (e.g. unaccompanied children, vulnerability assessment, potential victim of trafficking)
23 National Ombudsman for detainees, Report of visits to Repatriation Accomodation Centres (CPR) (2019-
2020), pp. 37-39, Available at https://www.garantenazionaleprivatiliberta.it/gnpl/resources/cms/documents/
b7b0081e622c62151026ac0c1d88b62c.pdf.
24 See: https://altreconomia.it/respingimenti-e-riammissioni-via-mare-la-denuncia-del-network-porti-adriatici/.UNACCOMPANIED 10
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or their will to apply for asylum. The lack of individual assessment implies the risk of serious
violation of the rights of unaccompanied minors, which must be granted with specific guarantees.
Moreover, access to legal assistance and language mediation appear not to be systematically
provided in clear violation of EU law. The European Court of Human rights case Sharifi and others
vs. Italy and Greece ruled that European Union Member States cannot ignore or circumvent their
obligations under the ECHR when implementing bilateral agreements relating to the return of
asylum-seekers to another EU country. Furthermore, Italy was found to have unlawfully carried
out collective expulsions of asylum seekers to an ‘unsafe’ country, given the serious structural
deficiencies in the Greek asylum system, breaching three provisions of the ECHR (prohibition of
collective expulsions, prohibition of inhuman or degrading treatment and the right to an effective
remedy). As a direct consequence, in early 2020 the Committee of Ministers of the Council
of Europe rejected the request made by the Italian Government to close the supervision
processes initiated following the Sharifi ruling25.
Throughout 2020, another interesting trend has been reported in the media: pullbacks to Italy carried
out by the Hellenic Coast Guard at sea in response to the need to manage arrivals from Turkey26.
From data for civic accesses and from direct experience, it is evident that pushbacks and
readmissions from Adriatic ports are increasing. Although there is no specific reference
to unaccompanied minors, monitoring action, reports received by the Adriatic Sea Network
and testimonies collected both in Italy and in Greece by associations all confirm that
pushbacks also involve unaccompanied minors.
During 2020 and early 2021, NGOs received a significant number of reports of asylum seekers,
including minors, who were prevented from being protected and granted protection under existing
legislation, being turned away at Adriatic ports.
There are numerous cases. By way of a few examples, in December 2020 an unaccompanied
Afghan minor asked for help after arriving at the port of Bari to avoid being readmitted to Greece
despite having declared his age. There was no contact with the border crossing service or a
mediator. On 14 August 2020, at the port of Brindisi, it was possible to prevent the “readmission”
to Greece of a 15-year-old Afghan boy tracked down while he was hiding in a car. He claimed to be
a minor, and showed a Greek document confirming his age. The boy stated he was detained in a
room inside the port and could not speak to anyone who spoke his language or English.
Only after several hours in the transit area, he was taken to hospital for a swab and placed in a
reception facility. In 2020, the testimonies recorded by the No Name Kitchen regarding readmissions
to Greece from Italian Adriatic maritime borders were published by the Border Violence Monitoring
Network27. The NGO recorded the readmissions to Greece of many Afghans, including two
unaccompanied minors, from Bari maritime border between October and November 2020;
one minor, from Venice maritime border between September and October, and one in February 2020;
one unaccompanied minor from Ancona maritime border in October 2020 and one in April 2020.
On 29 May 2021, an unaccompanied minor was readmitted to Greece from the Brindisi maritime
border and detained on arrival at the Greek port.
According to information collected by the NGOs, rejections and readmissions take place in most
cases through completely informal procedures, without guaranteeing any legal information.
The procedures are carried out without any of the protections envisaged for minors,
25 See: https://www.asgi.it/notizie/respingimenti-italia-indagine-caso-sharifi/.
26 See: https://www.ekathimerini.com/news/256628/human-smugglers-shifting-route-from-greece-to-italy/.
27 See: Border Violence Monitoring Network, “The Black Book of Pushbacks”, p. 26 and following, accessible at: https://
www.borderviolence.eu/wp-content/uploads/September-2020-BVMN-Monthly-Report.pdf.UNACCOMPANIED 11
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without the presence of specialised operators, without the presence of a linguistic-cultural
mediator who can ensure full awareness of what is happening and also to translate the exact date
of birth in the presence of calendars with different dates (such as Afghan minors). There are also
many testimonies of detention on-board ships during pushbacks, use of force and degrading
treatment even in the case of unaccompanied minors. Very often, following readmissions
to Greece, minors are also detained in facilities together with adults.
3_3 Unaccompanied Minors at the Internal Land Border with Slovenia
The border between Italy and Slovenia is a key entry area for migrants travelling the Balkan route
to northern countries. Indeed, Italy is mainly perceived by migrating people as a transit country28.
In order to achieve an exhaustive picture of the condition of minors at the Italian-Slovenian border,
one has to know the context of application of the readmission agreements. In 2020, cases of
readmissions to Slovenia from Trieste and Gorizia - and more widely from the borders of Friuli
Venezia Giulia region - were massively implemented29 without any formal procedure or decision.
In the Italian legislative system, local readmissions found their legal basis on the Readmission
Agreement signed by the Italian and Slovenian Governments in 1996. Although this agreement is
widely used and has political content, it has never been ratified by the Italian Parliament, contrary to
Article 80 of Italian Constitution. The systematic use of the agreement was confirmed last 24 July
when the Ministry of the Interior, responding with a written note to the urgent question presented
by the Member of Parliament Riccardo Magi on the situation of the “informal readmissions”
of foreign citizens at the Italian-Slovenian land border, confirmed that these readmissions take
place without formal provisions and - above all - stated that readmissions against foreign citizens
are applied “even if the intention to claim international protection is expressed” and that
“if the conditions for the readmission request are met [...], the applicant is not sent to the responsible
Questura [Police Headquarters] for the formalization of the asylum request”30.
A few months later - on 13 January 2021 - the Italian Minister of the Interior, in response to a second
parliamentary request, stated that in the previous year 1,301 people were readmitted to Slovenia31.
Even though this procedure should not involve families and vulnerable people, readmissions were
also carried out against those who declared themselves to be minors at the border, as reported
by the network Tavolo Minori Migranti32. This practice has been legitimised by two directives
on the age assessment of minors sent by the Public Prosecutor to the attention of the Juvenile
Court of Trieste on 31 August and 21 December 2020. Contrary to the guarantees enshrined
in Law 47/2017, these guidelines authorize security forces to carry out an age assessment of
28 Refugee Right Europe - Endpushback Campaign: “Pushbacks and rights violations at Europe’s borders - The state
of play in 2020, pp. 23-24.
29 See The New Humanitarian, “Europe’s chain of migrant expulsion, from Italy to Bosnia”, available at:
https://www.thenewhumanitarian.org/news-feature/2020/11/17/europe-italy-bosnia-slovenia-migration-
pushbacks-expulsion 17 November 2020.
30 See: https://en.asgi.it/informal-readmissions-balkan-route-asgi-letter-government-unhcr/
31 See intervention in Parliament by the Minister of the Interior, Lamorgese, minute 3:00, available at:
https://bit.ly/3tzqLgH.
32 “Tavolo Minori Migranti” is a un network coordinated by Save the Children, to which belong also AiBi, Amnesty
International, ASGI,Caritas Italiana, Centro Astalli, CeSpi, CIR, CNCA, Defence for Children, Emergency, Intersos,
Oxfam, Salesiani per il Sociale, SOS Villaggi dei bambini and Terre des Hommes. It was founded after the approval
of Law 47/2017 with the aim at monitoring its full implementation regarding the effective defence of minors.UNACCOMPANIED 12
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persons intercepted at the Italy-Slovenia border with a de visu evaluation: police can consider
migrants as adults if there are no apparent doubts about the age of consent of the concerned
person, regardless of the declaration of minor age and the consequent judicial review required by
law. These directives assign a discretionary power to the Public Security authority in identifying
the age of migrants and refugees subjected to border controls. A practice which is contrary to
the provisions of Law 47/2017, which states that age assessment must be carried out taking into
account identity documents and, if necessary, following a psychological and social examinations
- through a multidisciplinary procedure - as part of a proceeding under the jurisdiction of the
Juvenile Court33. According to some media reports, many unaccompanied children34, currently
based in Bosnia-Herzegovina without any formal protection or accommodation facility, went
through this procedure once in Italy: they have not only been informally readmitted to Slovenia
and then pushed back from Croatia to Bosnia35, but also informally considered adults without
receiving any report regarding the denial of the minor age.
With regard to detention, the Guarantor for the rights of detained persons, who visited the border
premises of the border police of Trieste and Gorizia in December 2020, reported critical issues
related to the procedure for the age assessment of minors, still in “non application” of the
provisions enshrined in Law 47/201736.
This unlawful application of the Italian provisions has obvious consequences even in the field
of reception of minors. As reported by ASGI37, three foreign citizens who declared themselves
as minors were placed in the Government first reception centres (CARA) Centre at Gradisca
from October 2020 to January 2021, sharing premises with adults, because of a lack of an age
assessment procedure: in the identification reports, which expressly mention the minor age claimed
by the migrants, police, referring to the above-mentioned directives, assigned a conventional
date of birth aimed at proving they had reached the age of consent (as happens along other
border areas)38. UNHCR and the Children’s Ombudsman recommended the authorities involved to
proceed with age assessment only when there is a well-founded doubt about the minor age, based
on an individual and objective evaluation. In 2020, in at least four cases, the Juvenile Court of
Trieste ordered the fulfilment of the procedure for the age assessment of the persons involved.
This has been the outcome of an appeal lodged by minors who had been identified as adults with
the result of being placed in adult facilities. The Court recognized the illegitimacy of the procedure
and sent the procedural documents to the attention of the local Juvenile Prosecutor’s office.
33 See Ansa, Migranti: 12 associazioni contestano Procura Minori Trieste, 10 February 2021, available at https://bit.
ly/3uBXbIw; see also ASGI, “Accertamento dell’età, due direttive della Procura della Repubblica per i minori di Trieste
in contrasto con la legge”, available at: https://bit.ly/3hha0nL, 10 February 2021 and “Nascosti in piena vista. Minori
migranti in viaggio (attra)verso l’Europa”, Save the Children, available at https://s3.savethechildren.it/public/files/
uploads/pubblicazioni/nascosti-piena-vista.pdf
34 Il Corriere della Sera», A Bihac, la guerra nella neve ai fantasmi che l’Italia respinge, 23 January 2021;
«La Repubblica», I ragazzi nel gelo di Lipa dopo i respingimenti: “L’Italia ci apra i confini”, 30 January 2021, available
at : https://www.corriere.it/esteri/migranti-bihac-bosnia-game-over-dell-europa/index.shtml
https://ricerca.repubblica.it/repubblica/archivio/repubblica/2021/01/30/i-ragazzi-nel-gelo-di-lipa-dopo-i-
respingimenti-litalia-confini20.html
35 See also Pushback report on children and unaccompained children in Croatia, https://www.cms.hr/system/article_
document/doc/647/Pushback_report_on_children_and_unaccompanied_children_in_Croatia.pdf
36 Guarantor for the rights of detained persons, report of 18 December 2020, available in Italian at: https://bit.
ly/3tCXNwr.
37 See letter sent by twelve associations including ASGI, at https://www.asgi.it/notizie/trieste-minori-eta/.
38 In mid-January 2021, after a legal intervention with the support of ASGI, the three minors were transferred
to facilities for unaccompanied minors.UNACCOMPANIED 13
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3_4 Unaccompanied Minors at the Internal Land Border with France
Since 13 November 2015, France has reintroduced border controls in accordance with Article 25
of the Schengen Code39. Notwithstanding the provision of Article 25 para. 4, border controls have
been prolonged by the French government until now40. An intensification of controls had been seen
since the previous summer41: a ‘temporary detention centre’ was established in June 2015
in the PAF (Police aux Frontières) station in Menton, consisting of containers in which people found
while crossing into France are still held in places of de facto detention while waiting for a decision
over refoulement42. Minors do not escape this fate, since detention and pushback operations
also regularly involve children. According to reports by civil society groups43, pushbacks of
unaccompanied children which take place at the border often involve authorities changing the
date of birth on the ‘Refùs d’entrée’ documents of minors to identify them instead as adults44.
These incidents also could involve the confiscation of birth certificates, and inadequate age
assessments based solely on appearance45. According to several reports, people are locked up
in a space made up of metal containers as well as a closed off courtyard until they are pushed back
into Italy. The process can take anything from a few minutes to 24 hours.
The material conditions of the containers are described as absolutely undignified and no legal
assistance46 or translation support is provided. No possibility of social distancing suggested by
Covid 19 public health guidance can be offered. In the above-mentioned context, it is evident that
there is a high risk of lack of access to international protection, as highlighted in various reports.
Since unaccompanied minors are often identified as adults, this implies that they are systematically
placed in containers shared with adults.
In the case of pushbacks, the rejection procedure is completed after the issue of a “refùs
39 Suspension actually requested until 31 october 2021.
40 In 2017 the Conseil d’Etat ruled on the proportionality of the reintroduction of internal border controls.
The Conseil d’Etat that this decision is proportionate to the seriousness of the threat and rejected all the critics
about the duration of the measures without referring a question to the Court of Justice of EU;
41 Amnesty International - La Cimade - Anafé, “Les manquements des autorités françaises aux devoirs élémentaires
de respecter, protéger et mettre en œuvre les droits de mineur.e.s isolé.e.s étranger.e.s en danger”, October 2020.
42 The Administrative Court of Nice found that, even in the absence of a specific legal basis, detention was permissible
for a period not exceeding 4 hours, after which the police would be required to transfer the individuals concerned
to a waiting zone, in this case the zone of Nice Airport. This interpretation was upheld by the Council of State on 5
July 2017.
43 Refugee Rights Europe “Pushbacks and Rights Violations at Europe’s Borders”, November 2020; Human Rights Watch
“France: La police refoule des enfants migrants”, 5 May 2021.
44 Human Rights Watch “France: La police refoule des enfants migrants”, 5 May 2021; Anafé, Persona non grata -
Conséquences des politiques sécuritaires et migratoires à la frontière franco-italienne, Rapport d’observations 2017-
2018, February 2019; Human Rights Watch, “Ça dépend de leur humeur” - Traitement des enfants migrants
non accompagnés dans les Hautes-Alpes”, 5 September 2019; Intersos, “Unaccompanied and separated children
along Italy’s northern borders”, 2017.
45 Article L. 213-2 and following of Code de l’entrée et du séjour des étrangers et du droit d’asile (CESEDA) state that
“any refusal of entry into France is the subject of a reasoned written decision taken, except in the case
of an application for asylum, by an official in a category determined by regulation. [...] Special attention is given
to vulnerable persons, especially minors, whether accompanied by an adult or not.”
46 Conseil d’Etat on 23 april 2021 claimed in the decision that conditions of detention in the prefabricated units were
“likely to undermine human dignity” but refused to order the closure of shelter facilities at the border police (PAF)
stations in Menton and Montgenèvre.UNACCOMPANIED 14
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d’entrée” and the order to cross the bridge (or the crossing point) where people on the move
are intercepted by the Italian authorities who issue a provision (expulsion decree) or invite them
to proceed on foot to the city of Ventimiglia47. If third-country nationals are intercepted in border
areas - but not in proximity of the border crossing points as listed and communicated to the
European Commission - they are informally readmitted without any written provision.
Serious concerns arise from testimonies reported by local organizations regarding the lack of
immediate communication of the presence of minors to the Juvenile Court Public Prosecution
from the public authority once minors are pushed back from France. This behaviour implies that
both no guardian can be appointed and no reception measures can be provided as established
by the Italian law48. In many cases, only the intervention of a civil society organization was able
to respond to the shortcomings of public authorities. Furthermore, as reported by NGO operators at
the border, the Italian police no longer collaborate to facilitate the practice of requesting the taking
back unaccompanied minors identified as such. This practice, after the identification, requires
minors to be handed over to French police, guaranteeing the minor’s right not to be refouled.
Pushbacks, combined with the lack of reception conditions on the Italian side of the border,
have caused congestion and a humanitarian crisis in Ventimiglia and other border points.
Ventimiglia specifically came to a critical situation with the government decision to halt all new
entries to ‘Campo Roya’ due to the Covid-19 outbreak in March 2020. This transit reception camp
was fully closed down in August 202049. Since then, people deprived of any kind of reception
facilities are subjected to inhuman conditions characterized by a lack of basic sanitary facilities,
a lack of drinking water, and virtually no access to health care, which is of course particularly
dangerous during the ongoing pandemic. This means that all displaced people are still forced to
sleep on the street or under the bridges, with a negative impact on the resident population50.
Local authorities are unable to reach an agreement to deal with the lack of a structured reception
system, leaving civil society organizations to take up the burden of identifying temporary
solutions, including those for minors. Only few places in shelters are available today for
unaccompanied minors in apartments provided by the Diaconia Valdese association in accordance
with “informal” agreements between the association and Ventimiglia Local Council.
The conditions of migrating people in the border area have even worsened amid the implementation
of mixed Italian-French patrols to operate along the border of Ventimiglia according to
the provisions of bilateral police cooperation agreements based on the 1997 Chambery
agreements51. Over the last few weeks, favourable weather conditions have seen more and more
migrating people reach the area, causing a very complex situation to handle, especially given
the lack of implementation of basic public services.
Tough conditions for migrants take place as well on the Alps. With the Italian-French border
largely closed, young individuals often take more dangerous routes, through the Alps, motorway
tunnels and other risky roads - sometimes ending in tragic fatalities. Last but not least,
47 ASGI, La situazione al confine tra Italia e Francia: effetti della pandemia e tendenze consolidate, available in Italian
at: https://bit.ly/2RDidb9, 22 February 2021.
48 Legislative Decree 142/2015, Article 18, 19, 19 bis as amended by Law 47/2017.
49 See: https://www.primocanale.it/notizie/migranti-campo-roja-chiude-rischio-per-ventimiglia-come-
nel-2016--221711.html.
50 See: https://www.corriere.it/cronache/21_maggio_24/fu-picchiato-strada-ventimiglia-migrante-si-uccide-
1b57c760-bc5c-11eb-abb7-46b8b952d96c.shtml.
51 Riviera time, “Una ‘squadra mista’ italo-francese: parte da Ventimiglia il progetto pilota della Polizia di Frontiera”,
available at: https://bit.ly/3bd9bbM, 21 December 2020.UNACCOMPANIED 15
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detention-like conditions and violence by the police on the French side have been reported52.
On 23 March, Italian authorities intervened in order to evacuate the Refuge Chez Oulx, which
consisted of a carriage house occupied by grassroots volunteers providing reception to exiled
persons. Many minors were reported to be temporarily hosted in the facility and subsequently have
been displaced. Currently, accommodation facilities are definitely insufficient to respond to needs53.
4_EU Pact on Asylum and Migration
and related reforms, and their impact
on unaccompanied minors
On 23 September, the European Commission presented the New Pact on Asylum and Immigration,
declaring its intention to mark a ‘new beginning’ in migration policies. Together with the Pact,
the Commission presented a comprehensive package of reforms54.
In addition to these reforms, which contain several provisions that could have a significantly
negative impact on unaccompanied minors, the Commission highlighted the importance
of continuing the reform plan already launched in 2016 concerning the Qualification Directive,
the Reception Conditions Directive and especially the Directive 115/2008/EC, better known as
the Return Directive. Directive 115/2008/EC contains provisions on both expulsion and detention
of minors and unaccompanied minors that are not directly affected by the recast proposals.
However, the conditions of unaccompanied minors present in Member States which, unlike Italy,
provide for the removal and detention of minors, could significantly worsen as a result of other
proposals for amendment, primarily that relating to the border procedure. In Italy, the negative
effects of these proposed amendments could be indirectly due to wrong identification of minors
as adults. Moreover, unaccompanied minors could be victims of serious violations as a result
of readmission to Member States such as Greece, where the detention of unaccompanied minors
is not expressly prohibited by national law and where, also given the lack of reception places,
the detention of minors is a widespread practice.
The following analysis focuses on the negative effects that the reform proposals presented
in September 2020 by the Commission could have on unaccompanied minors.
4_1 Proposal for a Pre-screening Regulation
The pre-screening proposal, which would also apply to persons rescued at sea irrespective
of the expression of willingness to seek international protection, has several critical aspects.
In particular: the provision concerning the non-authorisation to enter the territory
of the Member State and the generalised risk of detention at the border55.
According to the proposal, the procedure could, however, also be applied to foreign nationals found
52 MEDU - Medici per i Diritti Umani, “Rapporto sulla situazione umanitaria dei migranti in transito lungo la frontiera
nord-ovest tra Italia e Francia”, October 2020.
53 See: https://mediciperidirittiumani.org/lo-sgombero-di-oulx-e-adesso/.
54 Joint Statement: The Pact on Migration and Asylum: to provide a fresh start and avoid past mistakes, risky elements
need to be addressed and positive aspects need to be expanded.
55 ASGI, Proposta di regolamento sugli accertamenti nei confronti dei cittadini di Paesi Terzi - Osservazioni e proposte.UNACCOMPANIED 16
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by the police in the territory of the Member State if they crossed the border irregularly. In this case,
the screening would not take place on the border, but anywhere within the territory. During the
screening process, the authorities would collect, through the compilation of a specific summary
form, the information needed to direct foreign citizens towards removal or asylum procedures.
Minors and unaccompanied minors are not excluded from these procedures and the
safeguards provided appear to be weak and insufficient.
The proposal includes the need for Member States to involve child protection authorities (recital
21, Article 6, Article 9) and for information to be given in an age appropriate manner (recital 27)
but the formulation of the provisions does not seem to introduce effective obligations. In addition,
there is no provision for legal assistance or the appointment of a guardian. This means that
during a critical phase such as pre-entry screening, unaccompanied minors would be left without
safeguards and adequate protection. Moreover, the proposal does not contain any reference
to the benefit of doubt in the event of uncertainty regarding the minor’s age.
The risk of systematic and generalised detention of all migrants during the entire pre-entry
screening (up to ten days) and the provision for not authorising entry into the territory of the State
during pre-screening procedures (Article 4) is against both international and national standards
concerning minors56.
Italian law prohibits the expulsion, refoulement at the border and detention of minors and
unaccompanied minors: therefore, the provisions of the proposal are incompatible not only with
principles such as the best interests of the child, but also with provisions currently in force
in the domestic legal system.
In its General Comment n. 6, the Committee on The Right of The Child57 stated some important
principals including the followings:
— “State obligations under the Convention on the Rights of the Child apply to each child
within the State’s territory and to all children subject to its jurisdiction (art. 2). These State
obligations cannot be arbitrarily and unilaterally curtailed either by excluding zones or
areas from a State’s territory or by defining particular zones or areas as not, or only partly,
under the jurisdiction of the State. Moreover, State obligations under the Convention apply
within the borders of a State, including with respect to those children who come under
the State’s jurisdiction while attempting to enter the country’s territory. Therefore, the
enjoyment of rights stipulated in the Convention are not limited to children who are citizens
of a State party and must therefore, if not explicitly stated otherwise in the Convention,
also be available to all children - including asylum-seeking, refugee and migrant children -
irrespective of their nationality, immigration status or statelessness”;
“In affording proper treatment of unaccompanied or separated children, States must fully
respect non-refoulement obligations deriving from international human rights, humanitarian
and refugee law and, in particular, must respect obligations codified in article 33 of the 1951
Refugee Convention and in article 3 of the CAT”.
— “In application of article 37 of the Convention and the principle of the best interests of the
child, unaccompanied or separated children should not, as a general rule, be detained”.
— “Asylum-seeking children, including those who are unaccompanied or separated, shall enjoy
access to asylum procedures and other complementary mechanisms providing international
protection, irrespective of their age. (…) Unaccompanied or separated children for whom
56 PICUM Recommendations on safeguarding children’s rights in the migration and asylum pact proposals.
57 Committee on the Rights of the Child,General Comment No. 6: Treatment of Unaccompanied and Separated Children
Outside Their Country of Origin, https://www2.ohchr.org/english/bodies/crc/docs/GC6.pdfYou can also read
